Heidi Bartley v Secretary of State for Work and Pensions

Where maternity allowance is payable for the period that would apply if the claimant were entitled to statutory maternity pay, the statutory fiction extends as far as needed to place the two groups on an equal footing. The date stated in a maternity allowance claim as the desired start date may therefore be treated as the date notified to the employer. If confinement occurs before that deemed notice date, regulation 2(3) of the Statutory Maternity Pay (General) Regulations 1986 sets the period’s first day as the day after confinement; the separate requirement about ceasing work under regulation 2(1)(b) need not be decided.

Obiter: where employment continues during a career break, the break does not by itself prevent a woman from ceasing work in conformity with her notice on a later date.

The appellant remained employed during a career break and was in Australia when her child was born. She was entitled to maternity allowance but could not receive it while outside Great Britain. After she returned, the Secretary of State awarded allowance for the remaining part of the period, calculated from the default date 11 weeks before the expected week of confinement. The appellant sought a later start date, based on the date she had entered on her maternity allowance claim form.

The First-tier Tribunal dismissed her appeal. Before the Upper Tribunal, the central issue was whether the period should begin on the default date or the day after the birth. The Upper Tribunal also considered, as an alternative issue, whether a career break prevented her from ceasing work in conformity with a notice.

1. The appeal was allowed. The First-tier Tribunal’s decision involved an error of law and was set aside. Under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal re-made the decision.

2. Section 35(2) of the Social Security and Benefits Act 1992 makes the maternity allowance period the period that would apply if the claimant were entitled to statutory maternity pay. Applying the guidance in Fowler v HMRC [2020] UKSC 22, the statutory fiction extends as far as necessary to give claimants of maternity allowance and statutory maternity pay an equal footing as to their payment periods. It therefore includes treating the claimant as having given the notice required by section 164(4), and treating the start date entered on her maternity allowance claim form as the date notified.

3. The date so notified was later than the actual birth date. Regulation 2(3)(b) of the Statutory Maternity Pay (General) Regulations 1986 therefore applied, making the first day of the period the day after confinement. That resolved the appeal; the Upper Tribunal did not need to decide whether the claimant had ceased work in conformity with the notice for regulation 2(1)(b).

4. Obiter: the Upper Tribunal considered that the statutory fiction did not determine whether the claimant ceased work in conformity with her notice in a particular week. That question was factual. Following Wade v North Yorkshire Police Authority and HMRC [2011] IRLR 393, the judge considered that a woman may cease work on the notified date even if she had previously stopped work on another basis. Because the claimant remained employed during her career break, the break did not prevent that result. The judge did not decide the position where employment had actually ended.

5. The Respondent’s decision of 26 July 2024 was set aside. The claimant’s maternity allowance period began on the day after the defined Birth Date.

1. Upper Tribunal (Administrative Appeals Chamber): Appeal allowed; the First-tier Tribunal decision was set aside and the decision was re-made.
2. First-tier Tribunal (Social Entitlement Chamber): On 21 March 2025, dismissed the appellant’s appeal against the Secretary of State’s decision.